July 27, 2018

National Parents Organization improves the lives of children and strengthens society by protecting every child's right to the love and care of both parents after separation or divorce. We seek better lives for children through family court reform that establishes equal rights and responsibilities for fathers and mothers.

This week’s newsletter will provide a review and critique of Ohio HB 366 which enacts multiple changes to the state’s child support legislation, including creating a self-sufficiency reserve for payors, lowering child support obligations for low-income earners, and capping a payors' responsibility to pay for child care expenses. Despite these welcomed changes, however, the new bill presents some concerns.

In this issue, Board Member and OH State Affiliate Chair of NPO, Dr. Donald C. Hubin, analyzes the good, bad and ugly sides of HB 366. (Also, for a brief summary of the Bill, please see the article re-posted from the Toledo Blade earlier this week on NPO’s website.)

Ohio has recently enacted into law the most extensive changes in its child support laws in over a quarter of a century. Ohio news media is filled with stories highlighting the changes. As the leader of the Ohio Chapter of NPO, a member of the 2005 Ohio Child Support Guidelines Advisory Committee, and a member of the 2001 Ohio Child Support Shareholders Committee, I have had more than a passing interest in this legislation.

From the time the legislation was first introduced in the form of Senate Bill 125, and throughout the legislative review process, Ohio NPO has analyzed the legislation, pointed out both positive and negative features of it, and taken a stand on its passage. For details of NPO’s position on this legislation, see the links at the bottom of this post. Here, I want to highlight just a few of the changes to Ohio child support laws that are coming and why NPO gives the legislation a very mixed review.

The Good

First, this new legislation for the first time creates an appropriate self-sufficiency reserve, which attempts to ensure that child support obligations do not make it impossible for low-income obligors to support themselves. Imposing impossible child support obligations on parents does not benefit children; instead, it results in obligors defaulting on their child support obligations and not providing any support for their children. NPO has long supported reasonable self-support reserves. Finally, Ohio’s Office of Child Support and Ohio’s legislature have recognized that imposing impossible child support obligations is short-sighted and counter-productive.

Second, and relatedly, the new legislation create more reasonable child support obligations for those who are lower-income but above the point at which the self-sufficiency reserve kicks in. This, too, is a welcome change.

Finally, the bill puts a cap on an obligor’s responsibility to pay for child care, preventing the custodial parent from selecting child care that is far above the median cost and imposing these excessive costs on the child support obligor.

The Bad

Not surprisingly the new legislation raises the child support tables. Some people, apparently even some legislators, seem to believe that child support tables should rise with inflation. We frequently hear claims like: “The child support tables in Ohio haven’t been raised since 1992 and you know how much more it costs to raise a child now than it did then.” This is poppycock! The child support tables are based on the parents’ income. When inflation is high, incomes and expenses rise and parents who are earning more will pay more without the tables rising. Imagine how far someone would get with the argument that income tax tables have to be raised to reflect the increased cost of running the government!

The increases in the tables are modest compared to those recommended by the Office of Child Support in previous years. But they will result in most moderate- and higher-income child support obligors paying more.

The new legislation does, for the first time, recognize the direct child expenses of non-residential parents with a parenting time adjustment. Previously, 100% of the combined child support obligation was placed in the residential parent’s household. This new adjustment is intended to reduce the obligor’s child support obligation to reflect their direct expenses on the children.

Because NPO advocates for shared parenting and parenting time adjustments promote shared parenting, one might expect to see this important element of the bill under “The Good” heading. Unfortunately, the legislature has chosen to enact a version of a parenting time adjustment that is inadequate and unfair. It’s inadequate because it explicitly refuses to recognize many of the expenses that non-residential parents have on the children. The food they provide while the children are in their care counts, but the extra room in their house, the extra furniture, toys, computer for homework, and so forth, do not count. It’s unfair because it treats all of the child support recipient’s expenses on children as a shared obligation while treating the most significant direct child-related expenses of the obligor as solely that parent’s responsibility.

Combined with the increases in the child support tables, the parenting time adjustment will not result in lower child support payments for many parents, even those with very significant direct expenses on their children. So, while parenting time adjustments, in general, are a good thing, the parenting time adjustment in Ohio’s new legislation is not!

In fact, the new legislation contains not just one, but two, parenting time adjustments: one to handle “standard parenting time” and one that kicks in when obligors have the children in their care at least 147 overnights (approximately 40% of the overnights) per year. The standard parenting time adjustment is inadequate; the extended parenting time adjustment is vague and misleading. It simply directs the court to “consider a substantial deviation” in child support when the obligor has the children at least 147 overnights per year and, if the court chooses not to grant such a deviation, to explain why it did not. What it doesn’t do is define ‘substantial deviation’. The legislators left it to the judges to determine what that was, even though the judges explicitly asked the legislators to give more guidance on this.

Well-designed parenting time adjustments kick in gradually, avoiding “cliff-effects”. As you might suspect from what has already been said, Ohio’s legislation is not well designed. Obligors who have their children for fewer than 90 overnights a year, are not entitled to the standard parenting time adjustment; those with more overnights are. Obligors with fewer than 147 overnights per year are not entitled to special consideration of a “substantial deviation”; those with more are. If you want a recipe for lawyers to fight hard over insignificant differences in parenting time, you could hardly do better than this. When presented with a proposed schedule, good attorneys advocating for their client’s interests will, first of all, count the overnights. And, courts will be confronted with arguments over parenting schedules that are very similar except that one is slightly over the threshold and the other is slightly below it..

The Ugly

Okay, “The Bad” was pretty ugly. But there’s worse. Here’s how the new legislation calculates the “standard parenting time adjustment”. It assumes that children spend 30% of their time with the obligor parent. This is fictitious; county parenting time rules vary widely. Then, it estimates that 35% of the expenses of raising a child “travel with the child”. These are the only expenses of the obligor parent it considers relevant. It multiples 35% by 30% and gets 10.5%, which is rounds down to 10%. So, it concludes that a 10% reduction in child support is appropriate for standard parenting time.

We’ve already seen why this handles parents’ expenses unfairly--all expenses of the child support recipient are treated as shared expenses, while most of the expenses of the obligor are treated as solely the responsibility of that parent. But it gets worse. Even following this (flawed) methodology, the reduction should be 10% of the combined child support obligation--the obligation of the mother and the father combined. Calculating it as a percentage of only the obligor’s portion of the child support obligation is a blatant mathematical error.

The error was pointed out repeatedly by NPO during the legislative hearings. Indeed, the very reports produced by the Office of Child Support in 2009, 2013, and 2017 all said that the adjustment should be based on the combined obligation of the two parents. But, in introducing and defending the legislation, the Office of Child Support based the calculation on just the obligors portion of the child support obligation.

When confronted with this deviation from its own methodology and previous recommendations, the only response from the Ohio Office of Child Support offered was to say that they felt that calculating it based on the combined obligation would be too much of a downward adjustment. One wonders what the point is of having a methodology and rationale in the first place if, in the end, the legislation will be based on what simply “feels right” to the bureaucrats in the Office of Child Support.

The Bottom Line

This new legislation will help some low-income non-residential parents. And, it’s likely to benefit their children because it’s likely to promote more compliance with child support obligations for these parents because it’s more realistic about what they can pay. It will be harmful to middle- and upper-income non-residential parents--especially those who are highly involved in their children’s lives and incur significant direct expenses on the children. And, by harming them financially, it will harm their children.

Perhaps the worst consequence of the passage of this legislation is that it will, in the minds of our legislators, take the parenting time adjustment issue off the table. By instituting a bad parenting time adjustment, it will undermine efforts to create an appropriate and fair parenting adjustment for the foreseeable future.

Links to detailed NPO comments on Ohio Senate Bill 125, as introduced, which is substantially similar to its companion bill in the Ohio House HB 366 and the final Ohio child support legislation signed into law by Governor Kasich in June of 2018:

Don Hubin is the Director for the Center for Ethics and Human Values at the Ohio State University. He is a Member of the Executive Committee of the Board of Directors at National Parents Organization and the Chair of the Ohio Affiliate.

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